BENJAMIN MCCURRY v. AGNESS MCCURRY
CourtCourt of Appeals of Tennessee
Date FiledMay 29, 2026
DocketE2024-00042-COA-R3-CV
JudgeJudge Kristi M. Davis
StatusPublished
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Full Opinion
05/29/2026
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 24, 2026 Session
BENJAMIN MCCURRY v. AGNESS MCCURRY
Appeal from the Circuit Court for Washington County
No. 38147 D. Kelly Thomas, Jr., Senior Judge
___________________________________
Nos. E2024-00042-COA-R3-CV and E2023-01655-COA-R3-CV
___________________________________
The trial court found the appellant guilty beyond a reasonable doubt of three charges of
criminal contempt. The appellant appeals those criminal contempt findings. Discerning
no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
Case Remanded
KRISTI M. DAVIS, J., delivered the opinion of the Court, in which JOHN W. MCCLARTY,
P.J., E.S., and THOMAS R. FRIERSON, II, J., joined.
Agness McCurry, Austin, Texas, pro se appellant.
Jonathan Skrmetti, Attorney General and Reporter, and Katherine P. Adams, Assistant
Attorney General, for the appellee, State of Tennessee.
OPINION
BACKGROUND
Agness McCurry (“Defendant”) appeals two criminal contempt judgments entered
against her by the Washington County Circuit Court (the “trial court”) during an ongoing
child custody matter between Defendant and her ex-husband, Benjamin McCurry
(“Father”). On September 8, 2022, as part of the custody matter, the trial court ordered as
follows:
1. The parents are ordered to take the child to Teresa Fletcher, LMFT for
assessment and recommendations. The first appointment shall be scheduled
as quickly as practicable. Father shall make the appointment and
communicate the date and time to [Defendant]. . . .
***
3. The parties are ordered to participate with Ms. Fletcher to the extent that
she requires.
***
5. Based on [Defendant’s] failure to appear, [F]ather’s Motion to
Re-Evaluate Defendant’s Indigency Status is GRANTED. [Defendant] is
order[ed] to provide her last three months of wage statements to the Court,
and provide copies to counsel for [F]ather.
A certificate of service attached to the order reflects that it was emailed to Defendant by
the trial court clerk on September 8, 2022. Just over five months later, on February 13,
2023, the trial court entered another order providing, in relevant part, as follows:
Parties to Engage with Teresa Fletcher, LMFT
This Court entered an Order [on] September 8, 2022 in which the
parties were “ordered to take the child to Teresa Fletcher, LMFT for
assessment and recommendations.” This has still not occurred because both
[F]ather and [Defendant] must participate. This Order remains in effect and
the parties shall comply with it. It is also ORDERED that both parties shall
contact Ms. Fletcher’s office [] regarding when she would like to interview
or involve them, and that each party shall cooperate with Ms. Fletcher in her
assessment of their family dynamics/family conflict, and to see if the child is
or has been harmed by inappropriate behavior by either parent. . . . It is finally
ORDERED that each party shall proceed to schedule their appointment with
Ms. Fletcher as quickly as possible so that additional information regarding
the child and this family may be available at the continued hearing on March
24, 2023. Each parent shall contact Ms. Fletcher within 24 hours of
receiving this Order.
[Defendant’s] Indigency Status and Parties’ Income Documentation
Also, in the September 8, 2022 Order [Defendant] was ordered to
provide her last three months of wage statements to the Court with copies to
counsel for [F]ather. [Defendant] has not complied with this Order.
[Defendant] may now comply by providing her most recent three months’
worth of pay stubs or wage statements to the Court at the continued hearing
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to be held March 24, 2023, and it is again ORDERED that she shall provide
this wage documentation at the March 24, 2023 hearing.
In addition, it is ORDERED that each party shall provide the Court
with a complete copy of their 2022 income tax return including any forms,
schedules or other documents submitted to the IRS. If either party has not
filed their 2022 taxes prior to the March 24, 2023 hearing, it is ORDERED
that any such party shall bring all W2, 1099, K-1, and any other wage or
income documentation related to income earned or received in 2022 to the
hearing on March 24, 2023. Upon review of [Defendant’s] income the
undersigned may review her indigency status. Child support may also be
recalculated if there are changes in income or the residential parenting
schedule.
NOTICE
The parties are admonished that failure to comply with the
requirements of this Order relating to scheduling and cooperation with Ms.
Fletcher, providing pay stubs, and/or wage statements for the last three
months from [Defendant], and providing 2022 tax returns for both parties,
may subject such party to being held in contempt of court for willful failure
to comply with this Order, following notice and a hearing thereon. A party
may be charged by this Court with civil contempt and, if found guilty, held
in custody until such time as they comply with the Court’s Order. They may
be charged with criminal contempt and, if found guilty, sentenced to 10 days
in jail for each willful failure to comply with this Court’s Order.
A certificate of service attached to the order reflects that it was emailed to Defendant by
the trial court’s judicial assistant on February 10, 2023.
On February 28, 2023, the judges for the Chancery, Circuit, and Criminal Courts of
the First Judicial District, which includes the trial court, entered a standing order (the
“Standing Order”) that
No one, other than as excepted below, may possess an electronic
device within any of the courtrooms of the First Judicial District. In addition,
no electronic devices of any kind are permitted in the George Jaynes Justice
Center in Washington County or the Carter County Courthouse Annex in
Elizabethton. Electronic device includes, but is not limited to, cell phones,
laptops, tablets, recording devices of any type and size including any which
can record audio, video, sound, or that can broadcast or live-stream.
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Individuals are prohibited from capturing photos, audio or video of
any court proceedings unless otherwise permitted by order of the presiding
judge. A violation of this rule may result in sanctions including confiscation
of the device, removal from the courtroom, and/or a finding of criminal
contempt of court punishable by fine, incarceration or both.
This prohibition does not apply to licensed attorneys, court reporters,
court personnel and employees, and law enforcement personnel. Cell phone
and audio-visual recording devices will be permitted for finalization of
adoptions, weddings and investiture proceedings. Media access shall be
governed by Rule 30 of the Rules of the Supreme Court of the State of
Tennessee.
On May 16, 2023, the trial court filed a notice that it was charging Defendant with
criminal contempt because she “willfully violated the [February 13, 2023] Order by failing
to contact [Ms. Fletcher] as [o]rdered[,]” “by failing to provide the [trial court] with her
most recent three months’ worth of pay stubs or wage statements at the March 24, 2023
hearing[,]” and “by failing to provide the [trial court] with a complete copy of her 2022
income tax return or all . . . wage and income documentation related to income earned or
received in 2022.” On May 19, 2023, Defendant filed a notice of filing of a recording that
she made of the March 24, 2023 hearing. Thereafter, on June 27, 2023, the trial court filed
a second notice that it was charging Defendant with criminal contempt, this time because
she “willfully violated the Standing Order [] by surreptitiously making audio recordings
during a trial held March 24, 2023, in the Washington County Justice Center” and “during
a hearing held June 5, 2023, in the Washington County Justice Center.” The trial court
appointed a prosecutor to try the criminal contempt charges on behalf of the State of
Tennessee.
The trial court heard the criminal contempt charges on December 13, 2023.
Defendant was present in the courtroom at the commencement of the proceeding, and the
trial court asked her whether she would like to stay in the courtroom during the hearing or
move to another room and participate by videoconference. Defendant responded by
repeatedly stating that she did not want to participate or be involved in the hearing and did
not want to be in the courtroom. Eventually, the trial court instructed the court officer to
move Defendant to “the other room,” at which time Defendant began repeatedly stating
that she did not want to be in the other room. Defendant was moved to the other room and
connected to the courtroom by Webex videoconference, at which time she started
repeatedly asking the court officer to reduce the volume so she would not have to hear the
proceeding, stating that she did not want to face the screen, and stating that she did not
want to participate in the hearing. A transcript of the Webex recording reflects that at some
point Defendant began physically struggling with the court officer in an attempt to turn
down the volume so she would not be able to hear the proceeding:
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THE COURT: All right. The record will show that Ms. McCurry is not
participating.
DEFENDANT McCURRY: Thank you.
***
DEFENDANT McCURRY: Turn down the volume.
UNIDENTIFIED SPEAKER: No.
***
UNIDENTIFIED SPEAKER: Don’t touch it.
DEFENDANT McCURRY: No. I don’t want to participate. Just turn it off.
***
DEFENDANT McCURRY: Let me turn.
UNIDENTIFIED SPEAKER: Ma’am, don’t grab my hands.
UNIDENTIFIED SPEAKER: Don’t grab him.
DEFENDANT McCURRY: I’m turning. Let go of my hand.
UNIDENTIFIED SPEAKER: Don’t grab the officer.
Defendant also refused to participate when the trial court attempted to conduct a
colloquy to confirm that she understood her constitutional rights:
THE COURT: All right. Ms. McCurry, will you answer any of my questions
about your right to a lawyer or what the charges are?
DEFENDANT McCURRY: [Indiscernible]. I don’t want to participate. No,
I don’t.
I’m not answering no goddamn thing, you devil.
THE COURT: All right.
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DEFENDANT McCURRY: I rebuke you in the name of Jesus. I’m not
answering [indiscernible] from you.
THE COURT: The record will reflect that Ms. McCurry refuses to participate
in this hearing.
DEFENDANT McCURRY: Yes. And I don’t want to [indiscernible].
THE COURT: She will not answer my questions. I am going to review for
her –
DEFENDANT McCURRY: You’re a kidnapper. You’re a child kidnapper.
THE COURT: – her rights as related to this contempt hearing.
DEFENDANT McCURRY: (Continually overspeaking the Court throughout
the following with the phrase:) You’re a child kidnapper.
THE COURT: And then when I finish, I will ask her for a response. If she
gives me one, then I will take that response.
If she won’t, then we will [indiscernible] with the State’s evidence
and with the hearing. . . .
In other words, you did a very poor job of representing yourself the
last time, and I really wish you would let me appoint you a lawyer to help
you.
Defendant then began physically engaging with the court officers again and refused
to respond to the trial court’s attempts to ensure she understood her rights:
THE COURT: I need to ask Ms. McCurry a question.
DEFENDANT McCURRY: No.
UNIDENTIFIED SPEAKER: He needs to ask you a question.
UNIDENTIFIED SPEAKER: Ma’am, I’m going to spray you here in a
second.
DEFENDANT McCURRY: No. No. Start spraying me. I want to leave.
***
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DEFENDANT McCURRY: I don’t want to. I don’t want to answer nothing.
I want to be disruptive.
No, I don’t want to be here.
THE COURT: Officers, did — could you all hear what I was telling her?
DEFENDANT McCURRY: No. Nobody’s hearing nothing you’re saying.
UNIDENTIFIED SPEAKER: No, sir. No, sir, not really anything.
DEFENDANT McCURRY: I don’t want to participate.
Yeah, I’m struggling with them right now. I’m being very vocal and I
don’t want to participate. Nobody can hear anything. I keep yelling at you.
***
THE COURT: Ms. McCurry, you insist on not participating.
Is that correct?
DEFENDANT McCURRY: Yes. Yes. That’s what I’ve been trying to tell
you.
Yes.
THE COURT: Okay.
DEFENDANT McCURRY: Yes.
THE COURT: So the fact that you have a right to a lawyer and a right to
plead “not guilty” and a right to remain silent, you understand all that?
DEFENDANT McCURRY: I don’t want to participate. That’s what I – I
don’t want to . . .
THE COURT: Do you understand what I’m telling you about your rights?
DEFENDANT McCURRY: [Indiscernible] punishable by ten days. You can
give me full ten days, is what you can do, and I can leave.
How about that? . . .
-7-
***
THE COURT: The record’s going to show, Ms. McCurry, that you refused
to answer any of my questions.
(Defendant overspeaks continually. Unable to transcribe.)
THE COURT: That I reviewed your rights with you. You wouldn’t respond.
And all you would do is say that –
DEFENDANT McCURRY: I don’t want to participate.
The State began presenting its case and offered to provide Defendant with a copy of
eight exhibits it was proffering as evidence; however, Defendant refused to accept the
exhibits. No court reporter was present at the hearing, and the transcript in the record is a
transcription from the Webex recording. The transcriptionist was unable to transcribe the
first portion of the State’s case, regarding Defendant’s violation of the Standing Order, due
to Defendant’s repeated verbal outbursts, which made that portion of the proceeding
unintelligible. However, the State filed a statement of the evidence pursuant to Tennessee
Rule of Appellate Procedure 24 regarding this first portion of the proceeding. The trial
court approved the partial hearing transcription and statement of the evidence, finding that
“they provide a fair, accurate, and as complete as possible account of what transpired at the
criminal contempt hearing.”
The State’s first witness was Ashley Radford, a deputy clerk with the Washington
County Circuit Court Clerk’s office. Ms. Radford testified that Defendant was aware of
the Standing Order, which prohibited her from possessing a recording device in the
courtroom or recording any court proceeding without express permission of the trial court,
“because it was posted at all entrances to the courthouse.” Moreover, the trial court
admitted into evidence a certified copy of a Notice of Appeal that Defendant filed with this
Court on March 8, 2023, in which Defendant sought to appeal the Standing Order. Ms.
Radford further testified that she was present in the courtroom on March 24, 2023, during
a hearing in Defendant’s child custody matter. Ms. Radford stated that Defendant was
present in the courtroom during that hearing, represented herself, and did not request
permission to record the hearing. Ms. Radford explained that the trial court had a Webex
video recording of the hearing but that no one, including Defendant, had requested a copy
of the video. Nonetheless, on May 19, 2023, Defendant filed as an exhibit in the underlying
case, a disc that “contained a surreptitious unofficial audio recording” of the March 24
hearing. Ms. Radford testified that
[t]his DVD contained an audio recording made by Defendant and is not the
same recording as the Webex video recording because unlike the Webex
recording, Defendant’s voice is prominent and other noises are distant in the
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recording. In addition, Defendant’s recording starts prior to the Webex
recording and sounds of rustling and/or a muffled microphone can be heard
evidencing a device that was placed inside the recording person’s clothing
where the microphone is rubbing against fabric or clothing at times during
the recording.
Ms. Radford testified that during the March 24 hearing, Defendant testified that she
did not contact Ms. Fletcher as ordered because “[s]he did not want to spend time with her
abuser” and “that she did not want to see someone that was part of a [] conspiracy [] against
her.” Ms. Radford further testified that Defendant testified during the March 24 hearing
that Defendant would not provide her financial records because she was self-employed.
The trial court ultimately found that
[t]he proof establishes beyond any doubt that [Defendant] recorded the
hearing on the 24th of March without permission and filed a CD on the 23rd
[] of May, a copy of that hearing that she had recorded.
And according to the proof, she had no permission to do that. And, in
fact, she admitted those things when we had the hearing from criminal court
pretty much.
Also she has said on multiple occasions that she refused to go see
Teresa Fletcher to have any interviews about her contact with her son and
what was in the best interest for her child.
And she also has refused steadfastly to file the income statements that
she’s been ordered to file three times[.]
Accordingly, the trial court found Defendant guilty beyond a reasonable doubt as to all
three charges and sentenced her to serve ten days in jail for each charge. The trial court
ordered that the sentences for refusing to contact Ms. Fletcher and refusing to provide her
financial records run concurrently to each other, but consecutively to the sentence for her
violation of the Standing Order, resulting in an aggregate sentence of twenty days.
Defendant appealed the criminal contempt findings. On September 12, 2024, this
Court remanded this case back to the trial court for entry of an order that complies with
Tennessee Rule of Civil Procedure 58, as the criminal contempt judgments did not contain
certificates of service. The trial court entered corrected final judgments on September 25,
2024. Defendant then filed a motion for relief from judgment in the trial court pursuant to
Tennessee Rules of Civil Procedure 59 and 60. The trial court denied Defendant’s
post-judgment motion on December 20, 2024, finding
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Defendant, in her motion, freely and frequently uses the terms “fraud”
and “fraudulent,” but she has pointed to no actual facts established by the
proof in the record to demonstrate or suggest fraud. . . .
The allegations in Defendant’s motion reflect a continuing pattern in
her filings that shows each time a court does not rule in her favor, Defendant
delusionally perceives “fraud,” “case fixing and racketeering,” and grand
criminal conspiracies by multiple agencies of the justice system working
against her. . . .
Most of the factual allegations in her motion are entirely irrelevant to
the issue of whether Defendant is entitled to relief from the three judgments
of contempt against her on December 13, 2023. All of them are completely
unsupported by any evidence offered by Defendant. . . .
In support of her argument that she is entitled to a new trial or Rule
60 relief from the judgments finding her guilty of contempt, Defendant
asserts that she was deprived of due process during the contempt hearing
because she was “deprived of the right to call witnesses or adequately prepare
for the proceeding.” This is demonstrably false. Defendant was given
opportunity to speak and/or call witnesses in her defense, but she repeatedly
and adamantly refused to participate at the hearing. The partial transcript of
the evidence filed in this case reflects that Defendant stated “I don’t want to
participate” some eleven times in twelve pages before the court stated, “the
record will reflect that Ms. McCurry refuses to participate in this hearing.”
She also stated, “I’m going to disturb the hearing,” that she intended to
disrupt the hearing, and that “nobody can hear anything” because “I keep
yelling at you.”
None of these allegations provides a valid ground for relief under Rule
59 or 60.02.
The trial court clerk filed an Amended Certificate of Service pursuant to Tennessee Rule
of Civil Procedure 58 on March 24, 2025. Defendant appeals the criminal contempt
findings and the trial court’s denial of her post-judgment motion.
ISSUES
Defendant lists eighteen specific and detailed issues on appeal between her principal
and supplemental briefs. However, these issues do not align with the subheadings in the
argument section of her brief. The overarching arguments set forth in Defendant’s
principal brief are as follows:
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1. “The contempt judgment for failure to provide wage records should
be vacated due to procedural irregularities, judicial and professional
misconduct, denial of due process and VAWA confidentiality.”
2. “The contempt finding for failing to contact [Ms.] Fletcher must be
vacated due to judicial misconduct, impossibility of compliance, and due
process violations.”
3. “The contempt judgment for recording the March 24, 2023 hearing
must be vacated because the recording was protected whistleblowing conduct
in furtherance of a federal lawsuit against Judge Wright, and the enforcement
was retaliatory, biased and constitutionally deficient.”
4. “The trial court’s denial of [Defendant’s] Rule 59/60 motion was an
abuse of discretion and warrants reversal . . . .”
Her supplemental brief raises numerous issues all related to the fact that there is no
recording of the child custody hearing that occurred in the trial court on February 7, 2023.
The State, in its role as appellee with respect to the criminal contempt findings,
argues that Defendant waived all these issues on appeal by failing to raise them before the
trial court.
DISCUSSION
a.
On August 25, 2025, Defendant requested that this Court take judicial notice of
numerous documents that have been filed in a federal court case in which Defendant has
sued Walmart Inc. and Checkr Inc. She argues that these filings “directly impact the issues
presented on appeal and rebut the arguments advanced by the State” because they
“demonstrate[] that retaliatory acts affecting [Defendant’s] employment and livelihood are
directly tied to state-related misconduct that underpins the issues presented in this
appeal[;]” “detail[] how [Father’s counsel], acting in concert with Tennessee prosecutors,
influenced judicial actions, fabricated testimony, and conspired with Walmart/Checkr
employees to retaliate against” Defendant; “implicitly confirm[] that [Defendant’s] claims
are legally cognizable and serious enough to warrant formal resolution” through arbitration
(which was requested by Defendant and her co-plaintiff); “underscores [Defendant’s]
diligence in pursuing lawful remedies, contrary to the State’s portrayal of her filings as
frivolous[;]” and she argues that Walmart Inc. and Checkr Inc.’s purported concessions
that the claims are subject to arbitration “confirms that [Defendant’s] federal claims are
proceeding on the merits in an appropriate forum and cannot be dismissed as irrelevant to
her ongoing appeals.” Ultimately, she argues that the allegations in this federal lawsuit
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“are highly relevant to rebutting the State’s assertion that [Defendant’s] constitutional
claims in this appeal are ‘waived’ or ‘unsupported.’”
On September 17, 2025, Defendant filed a second request that this Court take
judicial notice of various filings that appear to be a portion of the filings she asks this Court
to take notice of in her motion filed August 25. In support of this motion, she argues that
the filings show that “1) [t]he [criminal contempt charges brought against her] were
predicate acts of a RICO conspiracy now recognized in a separate federal proceeding;
2) [t]hey were prosecuted on behalf of [Father’s attorney] and [Father], not for legitimate
state purposes; [and] 3) [t]hey form part of a broader scheme of retaliation for
[Defendant’s] exercise of [her] constitutional rights[.]”
Tennessee Rule of Evidence 201 deals with judicial notice of adjudicative facts and
provides, in relevant part:
(b) Kinds of Facts. A judicially noticed fact must be one not subject to
reasonable dispute, in that it is either (1) generally known within the
territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be
questioned.
(c) When Discretionary. A court may take judicial notice whether requested
or not.
(d) When Mandatory. A court shall take judicial notice if requested by a
party and supplied with the necessary information.
Defendant argues that these documents support her various arguments made in the
trial court and on appeal. Although we can take judicial notice of the fact that the proffered
documents were filed in federal court, the facts alleged within the various documents are
not the type of “fact[s] . . . not subject to reasonable dispute” provided for in Rule 201.
Accordingly, we deny the motion.
All other pending motions not specifically addressed herein are denied.
b.
As our Supreme Court has explained,
[a] person charged with criminal contempt is presumed innocent, and guilt
must be proven beyond a reasonable doubt. Black v. Blount, 938 S.W.2d 394,
399 (Tenn.1996); Robinson v. Air Draulics Eng’g Co., 214 Tenn. 30, 377
S.W.2d 908, 912 (1964). Once convicted, however, the contemnor loses the
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presumption of innocence and bears the burden of overcoming the
presumption of guilt on appeal. Black, 938 S.W.2d at 399; Robinson, 377
S.W.2d at 912. Thus, appellate courts do not review the evidence in a light
favorable to the accused. Thigpen v. Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct.
App. 1993). A conviction will be reversed for insufficient evidence only
when the facts in the record, and any inferences that may be drawn therefrom,
are insufficient as a matter of law for a rational trier of fact to find the accused
guilty of the crime beyond a reasonable doubt. Black, 938 S.W.2d at 399;
Tenn. R. App. P. 13(e).
State v. Beeler, 387 S.W.3d 511, 519 (Tenn. 2012). The three essential elements of
criminal contempt are
“‘(1) a court order, (2) the defendant’s violation of that order, and (3) proof
that the defendant willfully violated that order.’” Pruitt v. Pruitt, 293 S.W.3d
537, 545 (Tenn. Ct. App. 2008) (citing Foster v. Foster, No. M2006-01277-
COA-R3-CV, 2007 WL 4530813, at *5 (Tenn. Ct. App. Dec. 20, 2007)). In
addition, the plaintiff must show the following four elements: (1) the order
allegedly violated was lawful; (2) the order was clear and unambiguous;
(3) the individual charged did in fact violate the order; and (4) the individual
acted willfully in so violating the order. Konvalinka v.
Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 354-55 (Tenn.
2008)[.]
Hill v. Hill, 682 S.W.3d 184, 210 (Tenn. Ct. App. 2023). “A lawful order is one issued by
a court with jurisdiction over both the subject matter of the case and the parties.”
Konvalinka, 249 S.W.3d at 355 (citing In re Vanvaver, 12 S.W. 786, 791 (Tenn. 1890);
Churchwell v. Callens, 252 S.W.2d 131, 136–37 (Tenn. Ct. App. 1952)).
As a threshold issue, the State argues that Defendant waived all the issues that she
now raises on appeal by failing to raise those issues in the trial court and refusing to
participate in the criminal contempt hearing. “Under Tennessee law, issues raised for the
first time on appeal are waived.” Black v. Blount, 938 S.W.2d 394, 403 (Tenn. 1996).
Defendant replies that she preserved the issues she now raises by filing a motion for
sanctions “challenging the motives of [Father] and [his counsel] to ‘re-evaluate’ her
indigency, and legitimacy of therapeutic counseling for the minor child[.]” She also argues
that she refused to participate in the criminal contempt hearing “because of long standing
patterns by the trial court judges[1] in her case to violate [Defendant’s] due process rights
1
At least three trial court judges have presided over the underlying child custody matter at various
times. The September 8, 2022 order was entered by Judge J. Edwin Lauderback. At some point, Judge
Lauderback recused himself, and the matter was assigned to Senior Judge Thomas J. Wright. Judge Wright
entered the February 13, 2023 order and filed the criminal contempt charges at issue in this appeal. Judge
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and ignore her motions in favor of her abuser [Father] and his attorney[.]” Moreover, she
notes that she was arrested on December 6, 2023, and held without bond until the hearing
on December 13, 2023; thus, she argues, she was “deprived the right to call witnesses and
prepare for the hearing by default.” We address Defendant’s purported waiver of each of
these issues, in turn, below.
The bulk of Defendant’s arguments on appeal consists of collateral attacks on the
underlying orders that she was found to have violated. For instance, Defendant argues that
the order that she produce her financial information is unlawful because the order resulted
from “fraud and professional misconduct” by Father’s current and former attorneys and
violated Defendant’s rights under the Violence Against Women Act (“VAWA”). She
similarly argues that the order that she contact Ms. Fletcher is unlawful because it
“creat[ed] a procedural imbalance that violated her due process rights” and “demonstrates
selective enforcement and judicial bias.” Because Defendant raised these issues before the
trial court, they have not been waived; however, we need not reach the merits of these
arguments. Even if Defendant’s arguments were meritorious, “[a]n order is not rendered
void or unlawful simply because it is erroneous or subject to reversal on appeal.”
Konvalinka, 249 S.W.3d at 355 (citing In re Vanvaver, 12 S.W. at 791; Churchwell, 252
S.W.2d at 137). Erroneous orders “must be followed until they are reversed.” Id. (citing
Blair v. Nelson, 67 Tenn. 1, 5 (1874)). It is undisputed that the trial court had jurisdiction
over both the subject matter of the case and the parties; accordingly, the orders at issue
were lawful orders.
Since the orders of the Trial Court were not facially invalid for lack of
jurisdiction, Defendant was required to obey the orders of the Trial Court,
even if erroneous, unless or until they were dissolved by that court or
reversed on appeal. Defendant’s belief those orders were erroneous does not
change the fact that [s]he willfully failed to obey the orders. If simply
believing a court order was erroneous constituted a defense to ignoring that
order, then most court orders would be ineffectual since a losing party rarely
believes the court to be right.
Frye v. Frye, 80 S.W.3d 15, 19 (Tenn. Ct. App. 2002).
Defendant also argues that her “financial documentation was already on file” and
that the order to produce updated financial information “was not supported by any new
evidence of financial change, and failed to explain how that obligation interacted with her
existing wage garnishment order.” Defendant posits that this purported issue makes the
order that she produce her updated financial information ambiguous; however, this is
actually just another argument that the order was unlawful. An order is clear and
Wright retired on August 31, 2023, and this case was then assigned to Senior Judge D. Kelly Thomas, who
ultimately presided over the criminal contempt hearing and ruled on Defendant’s post-judgment motion.
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unambiguous when it “expressly and precisely spells out the details of compliance in a way
that will enable reasonable persons to know exactly what actions are required or
forbidden.” Konvalinka, 249 S.W.3d at 355 (citations omitted). Conversely, an order is
ambiguous when it is “susceptible to more than one reasonable interpretation[.]” Id. at 356
(citations omitted). Defendant does not argue that she was confused about what any of the
orders required her to do. Moreover, upon diligent review of the orders, we cannot
conclude that any of the orders are susceptible to more than one reasonable interpretation.
Therefore, the orders were clear and unambiguous.
Finally, Defendant does not dispute that she did in fact violate the orders; however,
she argues that certain of her violations were not willful. For criminal contempt purposes,
a person willfully violates an order when the person acts intentionally and with a conscious
objective or desire to violate such order. See Beeler, 387 S.W.3d at 523 (citing In re Sneed,
302 S.W.3d 825, 826 n.1 (Tenn. 2010)). Defendant argues that it was impossible for her
to comply with the order that she contact Ms. Fletcher because Ms. Fletcher “would not
respond to” Defendant. Defendant alleges that she “raised concerns about Ms. Fletcher’s
refusal to communicate . . . during multiple court appearances.” Notably, however, the
September 8, 2022 order merely required Defendant to “take the child to [Ms. Fletcher] for
assessment and recommendations” and “to participate with Ms. Fletcher to the extent that
she requires.” Similarly, the February 13, 2023 order required Defendant to “contact Ms.
Fletcher’s office[,] . . . cooperate with Ms. Fletcher in her assessment[,] . . . schedule [her]
appointment with Ms. Fletcher as quickly as possible[,] . . . [and] contact Ms. Fletcher
within 24 hours of receiving” the order. As Ms. Radford testified at the criminal contempt
hearing, Defendant admitted at the March 24, 2023 hearing that she had not made any
attempt to reach out to Ms. Fletcher because she was dissatisfied with the trial court’s order
that she do so, did not wish to submit to such assessment, and was upset about Father filing
an emergency petition for sole custody. This testimony is corroborated by the video and
audio recordings of the March 24, 2023 hearing that were admitted as exhibits to the
criminal contempt hearing. Whether Ms. Fletcher would have been receptive to this
contact by Defendant or responsive to Defendant is of no consequence. Defendant was
instructed to contact Ms. Fletcher within twenty-four hours of receiving the February 13
order, and she willfully failed to do so.
Similarly, Defendant argues that her violation of the Standing Order was not willful
because “[w]hile that order was technically in effect . . . [Defendant’s] conduct constituted
protected whistleblower activity, undertaken in support of an active federal civil rights
lawsuit[.]” However, there is no indication in the record or in any of Defendant’s filings
that she raised this issue before the trial court. Accordingly, this issue has been waived.
See Black, 938 S.W.2d at 403.
For these reasons, we affirm the trial court’s findings that Defendant is guilty of all
three charges of criminal contempt beyond a reasonable doubt.
- 15 -
c.
Next, Defendant argues that Judge Wright’s refusal to recuse himself from the child
custody matter “rendered all subsequent rulings voidable, including the contempt
conviction[s].” Defendant asserts that Judge Wright should have recused himself because
“[o]n February 7, 2023, prior to the March 24[, 2023] hearing, Judge Wright ordered
[Defendant] arrest[ed] twice in the same day, following her invocation of VAWA
protections[,]” because he initiated contempt proceedings against Defendant and because
Defendant sued Judge Wright in federal court. Notably, however, this Court has already
addressed many of these issues.
In February 2023, Defendant filed a motion to recuse Judge Wright in the
underlying child custody matter. The trial court summarized the grounds set forth in
Defendant’s recusal motion as follows:
The underlying factual basis for [Defendant’s] Motion to Recuse appears to
be the fact that she was ordered into custody for contempt of court on two
separate occasions during a recent hearing February 7, 2023. . . .
***
[Defendant] alleges that she was deprived of Due Process because she was
“discriminated against by Judge Wright due to her lawful permanent resident
status under VAWA.” . . .
***
[Defendant] contends that the undersigned has manifested bias and prejudice,
and that this “was due to [Defendant’s] ‘national origin’ as a lawful
permanent resident under VAWA [].”
McCurry v. McCurry, No. E2023-00297-COA-T10B-CV, 2023 WL 2591161, at *3–4
(Tenn. Ct. App. Mar. 22, 2023). This Court ultimately affirmed Judge Wright’s denial of
that recusal motion. Id. at *5. Accordingly, Judge Wright did not err by continuing to
preside over the child custody matter.
Defendant also made an oral recusal motion at the commencement of the March 24,
2023 hearing based upon the fact that she had recently sued Judge Wright in federal court.
However, there is no indication in the record or in Defendant’s appellate filings that she
ever filed a written recusal motion setting forth such ground. Tennessee Supreme Court
Rule 10B, section 1.01 requires that recusal requests be made “by a written motion filed
promptly after a party learns or reasonably should have learned of the facts establishing the
basis for recusal.” (Emphasis added). “Therefore, a claim of judicial bias may be deemed